Mississippi Advisory Opinions November 16, 2012: No. 2012-00521 (November 16, 2012)

Mississippi Attorney General Opinions

2012.

No. 2012-00521.

Dear Mr. Barton:

Attorney General Hood is in receipt of your request for an official opinion and it has been assigned to me for research and reply.

Background and Questions Presented

Your letter states in part:

This is a follow up of our earlier communications where you sent me a legal opinion from the Attorney General's Office as to how the City of Okolona separate school district was to reestablish a school board.

I have been requested by the Mayor of the city to send you a follow-up letter for more details concerning the appointment of members of the school board. The following questions need to be answered:

1. Are the members that are appointed by the city board appointed for staggered terms or are they appointed for 5-year terms?

2. When will there be an election for the positions outside the city limits in the county? I understand the City would make the appointment initially and then there would be an election. When would this election be conducted and who would handle the election, i.e. the school board, City of Okolona, or Chickasaw County? Please advise who would handle the election.

3. It is my understanding that the Okolona Separate School District is partially in Monroe County and partially in Chickasaw County. That being the case, the individuals who are appointed to serve as interim members of the school board, does it matter from which county they are appointed from ?

Furthermore, the Mayor asked me to inquire have there been any other issues that have come up that the city council should be aware of concerning the Okolona Separate School District and also have there been any other opinions rendered by the Attorney General's Office that relate to the circumstances of the Okolona Separate School District.

Response

1. All vacancies shall be filled for the unexpired terms except that in the case of the trustees coming from the added territory outside the corporate limits, the person so appointed shall serve only until the first Saturday of March following his appointment, at which time a person shall be elected for the remainder of the unexpired term.

2. Elections for the added territory positions will be held on the first Saturday of March following the appointments. The election is to be conducted in accordance with the relevant statutes and under the supervision of the Okolona Municipal Separate School District.

3. A school district trustee must be a resident and qualified elector of the school district, and in the case of a school district lying in two or more counties, but not including municipal separate school districts, the trustee must be a resident and a qualified elector of the territory entitled to representation on the board.

Analysis and Conclusion

Reconstitution of the Okolona Municipal Separate School district created vacancies on the board of trustees. You inquire about the length of terms for the members appointed to fill the vacancies and the timing of the election for the members appointed to the two elected positions. The procedures for filling school district vacancies are addressed by Mississippi Code Section 37-7-203 which states:

All vacancies shall be filled for the unexpired terms by appointment of the governing authorities of the municipality; except that in the case of the trustees coming from the added territory outside the corporate limits, the person so appointed shall serve only until the first Saturday of March following his appointment, at which time a person shall be elected for the remainder of the unexpired term in the manner otherwise provided herein.

Based on the procedure outlined in Section 37-7-203, the terms will continue to be staggered. MS AG Op., Barton (June 29, 2012). The election for the two elected positions will take place on the first Saturday of March following the members' appointments.

Regarding the conduct of the election, Mississippi Code Section 37-7-219 provides that it is the duty of the school district trustees whose terms do not expire in the year of the election to prepare from the records of the county registrar a list of qualified of electors who are eligible to participate in the election. Pursuant to 37-7-217, the qualified electors of the district meet at 2:00 pm on the date and at the location designated in Section 37-7-215, immediately organize by electing a chairman and a secretary of the meeting, and proceed to elect the trustees by secret written ballot from the list of candidates properly qualified. The chairman and the secretary of the meeting certify the results to the superintendent. We have previously opined that the election of municipal separate school district trustees is the responsibility of the school district. MS AG Op., Freeland (April 19, 2002). Thus, we are of the opinion that the election is to be conducted in accordance with the relevant statutes and under the supervision of the Okolona Municipal Separate School District.

Prior to reconstitution, the Okolona Municipal Separate School District consisted of five (5) board members, three (3) appointed members and two (2) elected members. Section 37-7-203 states that in the event the added territory of the municipal separate school district furnishes thirty percent (30%) or more of the pupils enrolled in the schools of such district, then not more than two (2) members of the board of trustees of such school district shall be residents of the added territory outside the corporate limits . In the case of a member of the board of trustees who is required to come from the added territory outside the corporate limits, the member shall be elected by the qualified electors of the school district residing in the added territory outside the corporate limits. MS AG Op., Barton (June 29, 2012). You note that the district lies in two counties and ask from which of these counties the members must be appointed. Section 37-7-201 states the following:

In order for a person to be eligible to hold the office of trustee of any school district, such person must be a bona fide resident and a qualified elector of such school district, and, in the case of a school district lying in two or more counties, but not including municipal separate school districts, such person must be a bona fide resident and a qualified elector of the territory entitled to such representation on the board.

Therefore, at least three (3) of the newly appointed members must be residents and qualified electors of the school district within the corporate limits. The two elected members representing the added territory must be residents and qualified electors of the added territory outside the corporate limits entitled to representation on the board. MS AG Op., Noble (October 9, 1984).

We should point out that Senate Bill 2074 (2012) enacted significant amendments to the procedures used in the election of municipal separate school district trustees. Because the bill makes changes to voting practices and procedures, the changes cannot take effect until the bill is precleared pursuant to Section 5 of the Voting Rights Act. SB 2074 was submitted to the Department of Justice on July 23, 2012, and due to conflicting language regarding the timing of runoff elections in the amended statutes, the Department refrained from making a determination regarding that particular section of the bill. Consistent with the reasoning in our opinion to Ashley Atkinson, Esq., (December 19, 2009), we are of the opinion that the portion of Senate Bill 2074 which received preclearance is without effect until the remaining portion of the bill is precleared or until new legislation clarifying the runoff procedures is passed and precleared. Thus, our responses in this opinion are based upon the relevant code sections as they read prior to the enactment of SB 2074.

Please let us know if this office can be of further assistance.

Sincerely,

JIM HOOD, ATTORNEY GENERAL

By:

Elizabeth S. Bolin

Special Assistant Attorney General